The fates of Wheatley and Kashmere are now the same as HSPVA and Carnegie. The fates of Henry Middle School and Highland Heights Elementary will be the same as T.H. Rogers and West U.

At Thursday night’s school board meeting, five brave Houston ISD trustees refused to accept that the only way to save the district was to charter a part of it. Even in the face of four schools possibly triggering State Rep. Harold Dutton’s school board death penalty law, which was written to force the TEA to either shut down schools or replace school boards, the trustees affirmed the truth that, as a city, as a community, we rise or fall together and that all 284 HISD schools should share the same fate—all retaining their democratic control or all facing an appointed board—together.

That is, if nobody flips under pressure from Mayor Turner or other influences in the coming two months.

Trustees Sue Deigaard, Anne Sung, Holly Vilaseca and Sergio Lira wanted to entertain privatization offers, arguing it was better to consider all options than risk their own seats to state takeover, while Rhonda Skillern-Jones, Elizabeth Santos, Diana Davila, Jolanda Jones and Wanda Adams showed they’d rather risk Dutton’s death penalty than create a separate and unequal system for just some of HISD’s schools.

This risky choice has a lot of people concerned and contemplating whether the district can be saved at all now.

As many have suggested, we should certainly challenge our legislators to repeal the HB1842 Dutton death penalty in the coming session; however, with Rep. Dutton joining the Republican chairs of the Texas House and Senate Education Committees to call for state takeover of HISD and the rest of the legislature focused on school finance, it’s unlikely HISD will see anyone come to its rescue from inside the capitol.

It turns out, though, HISD doesn’t need any new laws to save itself.

Here are three cases to be made with existing law to stop Dutton’s mandated board takeover or school closures…

1. STAAR breaks basic time-limit laws.

Ironically, in the same year Dutton got his school death penalty law passed, the Texas legislature passed a more common sense reform to the accountability system.

An internal memo, originally hid from public information requests but later uncovered after questioning in court, show that the Texas Education Agency explicitly failed to meet these age-appropriate time limits in 2016. Requests for data and memos related to 2017 and 2018 STAAR have been denied by the agency, giving little to no reason to believe the TEA has ever complied with the 2015 limits.

If the TEA failed to administer STAAR within the bounds of the same law that controls the entire accountability system, the assessments aren’t valid and the agency has no authority to use them to judge students, schools or districts.

In all that time, TEA officials have never denied breaking time limit laws in court documents—they’ve only argued that parents don’t have the right to sue the TEA. Another point of irony: one of the TEA’s many arguments against parents is that districts like HISD are actually the appropriate party to bring a lawsuit against them.

Parents won the right to challenge the TEA in district court two years ago, and then won again at the State’s Third Court of Appeals this past spring.

Chief Justice Jeff Rose ordering the case to proceed: “Finally, Morath contends that appellees’ alleged injuries are speculative…We disagree…[Parents] have alleged in their pleadings, and Morath does not dispute, that at least one of the schools attended by [their] students has had its accountability rating lowered based on the result of the non-compliant tests…Having overruled Morath’s issues, we affirm the district court’s order.”

But now, the TEA has gone as far as to petition the Texas Supreme Court to bar parents from proceeding with their case. It’s notable that TEA officials would rather fight the rights of parents rather than simply provide documentation the agency followed the law. And given the imbalance of resources between Texas public school parents and the State, the TEA knows it doesn’t have to win, it just has to delay the case indefinitely—and that’s exactly what they’re doing.

A new lawsuit with the same basis but brought by a school district under immediate threat of harm could change this trajectory.

Dr. Walter Stroup found that individual student scores on state standardized tests stay within a small 10 to 15 point range regardless of curriculum, teachers or class size—all things educators know impact student learning but which he found didn’t statistically impact standardized test scores.

Specifically, Dr. Stroup found standardized test scores in Texas to be 72% “insensitive to instruction, and when Pearson—the company Texas paid $468 million to create STAAR—pushed back on Stroup’s research, they actually admitted that the tests were 50% insensitive to instruction—50%!

That means the test maker admitted that 50% of the rise or fall in STAAR scores comes from something other than what goes on in the classroom.

Does this sound like an instrument on which we should be judge kids? Judge schools? How about using to remove a democratically elected school board?

Challenging the validity of STAAR in court is an expensive prospect because it requires significant discovery, research and expert witnesses—all of which cost money. This is why parents didn’t include it in their 2016 lawsuit, but it is exactly the type of case that school districts often band together to share costs—just as HISD did when it joined other districts to fight in court for years in an effort to prove Texas’ school finance system was unconstitutional. There are more than a dozen districts in the same position as HISD, and with HISD as lead plaintiff and others following behind, these districts would make a formable opponent against the State in a case demanding it publicly prove the science behind its testing.

3. Equal Protection. Equal Rights.

The high stakes consequences of the State’s accountability system disproportionately affect minorities—Black and Latinx students and their parents.

Look at the graph below that shows all the schools in the State last year and each’s proportion of Black & Latinx students. Look at which ones were at risk of triggering the Dutton school death penalty.

Essentially, the more Black or the more Latinx a school is, the more likely it is to be threatened by the State with closures or with the removal of its democratically-elected school board. If you discount the first two cases above—somehow believing the TEA is following the rules and the tests measure something meaningful—consider for a moment how skewed the punishment of Texas’ accountability system are demographically. The loss of holistic education choices (music, art, sports), the loss of opportunities to attend a nearby neighborhood school, and the ability to elect a local governing body to differentiate local school policies are all more likely to be taken away from students and parents who are minorities.

From the Equal Protection Clause in our Constitution to the Voting Right Act, there are surely several federal discrimination cases a good constitutional or civil rights lawyer could make out of this disparity.

Why doesn’t HISD hire a few of these civil rights lawyers with some of the money it spends each year on the kind of lawyers that fight teachers and parents?

Conclusion.

Now, I’m not a lawyer, so I don’t know which of these cases are most likely to save HISD and other districts the fastest or which are more or less likely to have a positive outcome. However, I do know these things.

First.

The accountability system is a train that can’t stop without derailing. The entire system is based on year over year results—the contracts, the consequences, the fear.

All of these things breakdown if we push pause for a year or two—the exact kind of pause a local judge might just put in place if a well-formed case were made and irrevocable damage (like the ousting of elected officials) was shown to be imminent.

Let me be more plain—we don’t have to be sure we will win a lawsuit years from now to force change. Just like the state is using delay to wait out parents, districts, too, could use every legal tool to slow the State’s progress wrest control from the people.

Simply getting a judge to halt the immeasurable, irreversible public consequences of an allegedly flawed system while a court hears a case would give districts across the State breathing room. Furthermore, it would undercut the State’s ability to coerce districts into doing things they know are bad for kids because they feel they have no choice but to give in—like Waco ISD did last year when it chartered its schools for at five years right before those schools ended up getting off of the State’s failure list.

Second.

We have to press these cases in court even in the face of possible loss. Why?

Because brave people before us did it, and we benefit today because they took that risk.

The bravery of the parents of Ruby Bridges and Sylvia Mendez and others are the reason the community was able to stand before HISD trustees earlier this week and remind them that "separate is never equal” and demand they not take a step backward in the history of school equality.

The testing-based school accountability movement got its start just after schools were forced by the courts to integrate, and that wasn’t an accident. The country somehow did just fine without “school accountability” when white kids went to school with only white kids.

For decades, there has been a need to continually justify less investment in all public schools while bolstering the investment in just some schools—specialty schools, suburban schools, private schools. That justification needed a plausible basis other than race, and standardized testing—with its appearance of science and fact while behind the scenes only being correlated with race and class, not teaching—is just what that movement needed to get the job done.

So, now that the cases are laid out and the battle lines are drawn, who will fight against the movement that is hell-bent on destroying the right to a quality education for everyone?

If not the school board of the largest district in Texas—one with a $2 billion annual budget—then who?

If not a district made up of over 200,000 mostly Black & Latinx students—mostly those with economic hardship—then who?

If it’s not a district led by trustees, 8 of 9 of whom are people of Color, 8 of 9 of whom are women and 9 of 9 of whom are self-described progressives, then who?

The stakes are clear: The rule of law, true accountability for our government, and delivering the promise of school equality that’s been denied so many times, for far too long.